COMMONWEALTH PENNSYLVANIA v. VICTOR C. BRAITHWAITE (04/13/78)

Alan P. Marian, Harrisburg, with him George W. Gekas, Harrisburg, for appellant.

John M. Eakin, Mechanicsburg, with him Edgar B. Bayley, District Attorney, Carlisle, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 253 Pa. Super. Page 449]

On September 30, 1975, appellant was declared guilty by a jury of conspiracy to commit burglary. After denial of his timely post-verdict motions for a new trial and in arrest of judgment, appellant was sentenced to serve a term of three to twelve months in the Cumberland County Prison. Appellant now contests the propriety of his conviction, raising several allegations of error. We find no merit in appellant's contentions and therefore affirm the judgment of sentence.

Appellant first contends that his right to a speedy trial under Pa.R.Crim.P. 1100 was denied.*fn1 Appellant predicates this contention on the following facts. On March 10, 1975, a commercial establishment in Cumberland County was burglarized. Four criminal complaints based upon this incident were ultimately lodged against appellant. The first complaint, charging appellant with burglary, was filed on March 10, 1975, the date of the alleged crime. This complaint was dismissed by a local magistrate on April 16, 1975. Appellant was also charged in a complaint filed March 20, 1975, with abetting a theft. A third complaint, charging appellant with burglary and conspiracy to commit burglary, was lodged on April 17, 1975. On May 21, 1975, the second and third complaint were withdrawn by the affiant, Corporal R. C. Blosser, Jr., of the Hampden Township Police Department, and a fourth complaint, charging appellant with conspiracy to commit burglary, was filed. Appellant's conviction accrued from the fourth complaint. On September 19, 1975, appellant applied to the court below for an order

[ 253 Pa. Super. Page 450]

dismissing the charges because trial had not commenced within 180 days from the filing of the first complaint. After a hearing, the court below denied the appellant's petition to dismiss. Trial commenced on September 29, 1975, well within the 180 day period from the date of the fourth complaint.

We find the instant situation to be controlled by our decision in Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976). In Mumich, we held that the prescribed period of Rule 1100 commenced with the filing of a subsequent complaint when an initial complaint had been properly dismissed by a magistrate. We tempered our holding in Mumich, however, with the recognition that the prompt trial period would attach from the date of the second complaint only if (1) the first complaint was properly dismissed and (2) the record fails to reflect an improper prosecutorial design to circumvent the mandate of Rule 1100. Here, as in Mumich, the record fails to show that either the appellant or his attorney objected to the dismissal of the complaint by the magistrate. We must therefore assume that the magistrate did not abuse his discretion in dismissing the complaint. Since the complaint was properly dismissed by the magistrate, the Commonwealth was not precluded from filing a new complaint. See Pa.R.Crim.P. 150(b); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). Moreover, the record does not demonstrate ". . . any impropriety by the district attorney's office in this case to avoid the mandate of Rule 1100."*fn2 Commonwealth v. Mumich, supra, 239 Pa. Super. at 212, 361 A.2d at 361. Since appellant's trial timely commenced after the filing of the complaint on May 21, 1975, we hold that appellant's rights under Rule 1100 were not violated.

[ 253 Pa. Super. Page 451]

Appellant also contends that the court below abused its discretion in refusing to admit into evidence certain photographs intended by the defense to impeach the testimony of several Commonwealth witnesses. Appellant's position is not tenable.

At trial, two undercover security agents testified that they had been assigned by a security agency to survey the premises of the Pennsylvania Outlet Mall (Mall) in an effort to detect suspected criminal activity. On the night of March 9, 1975, the two agents, situated in a parking lot of a commercial enterprise adjacent to the Mall, observed appellant enter the Mall to begin his shift as a night guard. Early the next morning, the agents observed two men drive a white Chevrolet van to the front entrance of the Mall, repeatedly flash their headlights onto the glass entrance doors, and then drive from the parking lot. The men, however, soon returned, alighted from the vehicle, and were admitted into the Mall by appellant. Several hours later, one man exited the Mall and drove the van to the rear of the building. The agents followed the van and saw a man loading a cardboard box into it. As the agents apprehended the man, the back door of the Mall slammed shut. When local police later arrived and arrested appellant, he was alone in the building.

Appellant attempted to introduce at trial certain photographs of the front entrance of the Mall which were taken from the parking lot where the agents observed the alleged crime. By introducing these photographs, appellant wished to discredit the testimony of the two agents as to their ability to observe the individual who opened the front door of the Mall. One of the agents, however, testified that the photographs, taken in September of 1975, neither corresponded exactly to the angle from which he made his observations nor did they accurately reflect the actual lighting present on the night of the crime. The trial court refused to allow the photographs into evidence, explaining that a verbal description of the difference in lighting between

[ 253 Pa. Super. Page 452]

the photographs and the night in question*fn3 would serve only to confuse the jury. The lower court further reasoned that any benefit which the jury would receive by viewing the physical layout of the scene would be negated by the misleading nature of the photographs as to lighting.

"Our law is well-settled that the admission of such evidence is a matter within the discretion of the trial judge and, absent an abuse of discretion, there is no reversible error." Commonwealth v. Scaramuzzino, 455 Pa. 378, 381, 317 A.2d 225, 226 (1974). In determining whether the lower court's action constituted a clear abuse of discretion, we recognize that:

"[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused." Man O'War Racing Ass'n, Inc. v. State Horse Racing Comm., 433 Pa. 432, 451, n. 10, 250 A.2d 172, 181, n. 10 (1969), quoting Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

In the instant case, appellant presented the photographs not ". . . merely for the purpose of visualizing the appearance and location of the various objects in the area," Commonwealth v. Pitts, 450 Pa. 359, 366, 301 A.2d 646, 650 (1973), but rather to impeach the agents' testimony as to their ability to observe and identify appellant. The agents' angle of sight and the luminosity of the scene undoubtedly constituted elements of primary significance to a challenge to ...

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